The Checkpoint Future- SB 298
The DWI roadblock bill has passed through the Senate is working it’s way through the House as I type this. The roadblock, I mean “checkpoint” bill is SB 298.
So how much security are we getting for our freedom?
From DMN and State Senator John Carona (R-Dallas)
“We’re not taking anyone’s rights away. We’re trying to make sure my right and your right to drive safely is protected,” Carona said….
Checkpoints could save 300 lives a year in Texas, Carona said, citing federal highway safety experts.
I beg to differ. In fact, you are taking away this right
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated..
and replacing it with a new “right” to be stopped without cause and forced to prove yourself not intoxicated. I’ve searched the US and Texas constitution for the “right to drive safely” and I couldn’t find it. Maybe John can show me where he go that from.
What’s in 298?
There are limitations on these these random suspicionless searches of Texas drivers. They are only allowed in counties over 250,000. Only one a year per location. The police have to stop cars at random (every third or fourth etc). Here are some other “protections” that caught my attention.
(i) A peace officer at the sobriety checkpoint may not
require a motor vehicle operator to perform a sobriety test unless
the officer has reasonable suspicion or probable cause to believe
that the operator is in violation of Section 49.04 or 49.045, Penal
Code. A peace officer who requires or requests an operator to
provide a specimen of breath, blood, or urine must comply with
Chapter 724, Transportation Code.
(j) Unless a peace officer has reasonable suspicion or
probable cause to detain a motor vehicle operator for a criminal
offense, the time during which an officer makes an inquiry of an
operator should not exceed three minutes, and the total time during
which the operator must wait to pass through the checkpoint should
not exceed 10 minutes. The law enforcement agency shall make
reasonable efforts to reduce these periods to not more than one and
five minutes, respectively.
On a side note, SWAT home invasion searches have less statutory requirements than a roadblock. But that’s for a different post.
Notice the weasel word “should”. “Shall not exceed three minutes” would actually mean something. “Should” is a suggestion, and I predict the appellate courts will treat it as such. If there really was a three minutes limitation why not just lock the windows and refuse to cooperate for 3 minutes?
The only “shall” requirement is to take “reasonable efforts” to keep these between one and five minutes. I don’t expect zealous enforcement of that requirement by our appellate courts.
Prediction 1- I predict the standard for reasonable suspicion at a roadblock is going to become; “slurred speech, odor of alcoholic beverage, and bloodshot eyes.” Those are three most common boilerplate signs of “intoxication” listed in police reports. And, what else can you observe from a driver sitting in a vehicle?
Prediction 2- When Senator Corona’s 300 fatality reduction doesn’t materialize a new “tougher” DWI checkpoint bill will be drafted doing away with the already anemic “protections” this bill offers. Once you get the public used to roadblocks, it’s a much easier sell to get “tougher” at roadblocks. Why not demand a breath sample of every driver? Or a blood sample? Or make all drivers take SFSTs?
Prediction 3- Once we legalize random suspicionless searches there will be a call to expand to other causes du jour. It won’t be long until another “crisis” demands it’s own version of a checkpoint.
Why not look for illegal immigrants at a checkpoint? Why not search for drugs at a checkpoint? Why not search for sex offenders at a checkpoint? Why not search for terrorists, nuclear weapons, illegal handguns or illegal sex toys at a checkpoint? Why limit this to cars? Let’s search passengers on the DART rail. Or search private homes for drugs, child pornography, or “passion parties”.
Do roadblocks work? Depends on what the goal is. Even MADD admits the “primary” goal of a checkpoint is deterrence. From MADD.org
The point of a checkpoint is to deter primarily and to enforce the law when required. Sobriety checkpoints are higher visibility and raise the perceived risk of getting caught more than do roving patrols or saturation patrols.
MADD is right. They can scare the shit out of Texas drivers by stopping every car without reason and treating each driver like a criminal. Does that mean we should engage in big brother security theater? Using fear to change public behavior has catalyzed the shift from peace officers to law enforcement.
Do roadblocks prevent fatalities?
Probably not. In fact roadblocks have proven so ineffective (and so expensive) that communities are calling to end them.
And why would we expect roadblocks to reduce fatalities? If you want stop dangerous drivers cops should patrol the roads looking for dangerous driving behavior. If you want to randomly harass the public, then put up a roadblock.
Me on the radio-
I was just interviewed by ridindirtyradio.com about Texas checkpoints. I have to say it made me fairly nervous to be on the air. I had not been on the radio since the summer of 2002 when I did a few shifts for the Texas Tech student radio. (Keep it locked to the left, 88.1 FM).
I was on with Ken and Heidi aka ridin dirty radio, 830 AM in Los Angeles. I probably talked way too fast to make any sense. We discussed the roadblock bill, the driving culture in Texas, and the role parents could play in preventing DWI.
They asked if the Texas-OU game would have a checkpoint. I stated that I doubted the alumni would allow it. My guess that there will be an inverse relationship between political influence and roadblocks. Can you see Jerry Jones allowing a checkpoint outside his new stadium? Right.